Working from home and the return to the office
A senior employee’s request to work permanently from home was justifiably rejected by her employer, despite the fact that she had successfully been doing so since the start of the pandemic.
Ms Wilson was a senior manager at the Financial Conduct Authority (FCA). She directly managed 4 employees and indirectly managed a further 10. In December 2022 she submitted a flexible working application. She had already been working remotely since the start of the pandemic in early 2020 but following the FCA’s implementation of a policy which required staff to split working time 60%/40% remote/office, she requested a formal change in her employment terms to enable her to work entirely remotely.
The FCA rejected her request because of the negative impact her requested working arrangement would have on her team. In a letter confirming their decision to Ms Wilson, her line manager stated that working from home could have a detrimental impact on performance or quality of output. Ms Wilson appealed but this was rejected. Ms Wilson was notified of this on 29 March, 21 days after the statutory decision period had expired. She lodged a tribunal claim for a breach of the statutory right to make a flexible working request, firstly, arguing that the FCA had failed to communicate the appeal outcome within the statutory time limit of three months and secondly, claiming that the FCA had rejected her application based on ‘incorrect facts’.
Ms Wilson was partially successful. The tribunal upheld her claim that the statutory time limit had been breached and awarded her one week’s pay. But her claim that the decision by the FCA to reject her request was based on ‘incorrect facts’ was not upheld.
The tribunal held that Ms Wlson’s line manager had carefully analysed the factors for refusing her request and that it had not been based upon incorrect facts.
Although it was acknowledged by the FCA that Ms Wilson had performed well whilst working from home and had built good working relationships with colleagues, the line manager had concerns about Ms Wilson not being able to carry out face-to-face training sessions, attend away days or coach new joiners. The FCA also referred to her ‘vital leadership role’ as senior manager and the importance of junior colleagues being able to meet senior managers.
The FCA also had valid concerns about Ms Wilson’s other duties which would have been detrimentally impacted should her request to work fully from home be granted. These included meeting and welcoming new staff members, providing internal training, supervision, ad-hoc advice and support, attendance at in-person events, conferences and planning meetings and attending the ‘Department Day’ where the management team would present topics to the department and spend the day together.
The judgment notes that ‘it is the experience of many who work using technology that it is not well suited to the fast-paced interplay of exchanges which occur in, for example, planning meetings or training events when rapid discussion can occur on topics’. It also notes that expectations around face-to-face training and coaching, amongst other activities, were ‘elements of the work of the claimant which the respondent legitimately expected her to complete’.
The judge was satisfied that the decision had not been based on incorrect facts, as Ms Wilson had argued. Despite her high level of performance from home, it was reasonable to consider the impact on other workers and decide that some elements of the role would still be better performed in the office. As such, the FCA was entitled to refuse the request.
The usual caveat applies – this was only a tribunal decision and, as such, has no precedent value. It also should not be seen as a decision which rubber stamps a mandatory return to the office policy for employers who wish to compel in-person attendance. This was a decision about a very specific point of law – whether the reason provided by the FCA for refusing a flexible working request was based on ‘incorrect facts’. It wasn’t a decision on other legal issues, for example, the question of whether a policy requiring office attendance might be indirectly discriminatory or whether a dismissal following a refusal to return to work in the office was fair.
What else can we glean from this decision? Never apply a blanket approach to enforcing a company policy. Carefully articulate any reasons for a refusal, as was the case here. Consider the individual’s circumstances. Do they have childcare or caring issues? Are they disabled? Explore alternative options if the employee’s original request isn’t workable. Make sure you know who has responsibility for any flexible working requests and that they are dealt with in the appropriate timescales. Here Ms Wilson’s line manager was upfront that the delay was caused because she was not aware it was her responsibility to progress the application. From April 2024, the time limit for dealing with flexible working requests is reducing from 3 to 2 months.
Flexible working will no doubt continue to be a hot topic in the future – particularly as employees will have the statutory right to request flexible working arrangements from day 1 of their employment from April 2024 and will be able to make two requests per year (instead of the current one).
As the Employment Judge commented: ‘This is a case which raises a key issue in the modern workplace and which will no doubt be the subject of continued litigation’.